Friday, April 01, 2016

I imagine that many voters find judicial elections to be confusing.
Candidates seem to have but one message. They say that they will simply apply
the law and not engage in politics. They reject any suggestion that they will
inject their politics into judicial decision-making or be an “activist” judge.
In judicial elections, there are only little Scalias out there.

Yet voters notice that the political cognoscenti – the
ideological movers and shakers – seem to care an awful lot about who wins these
races. They typically see liberals and Democrats supporting one candidate while
conservatives and Republicans support another. Although no one seems willing to
admit it, it sure looks like something political is going on.

The answer lies in the past one hundred years of American
legal and political history. Early twentieth century Progressives – in many
ways the antecedents of today’s American left – came to be frustrated with our
Constitution. Our Founders mistrusted power and created a lattice of branches
of government and dual sovereigns in which each checked the authority of the
others. Power in the federal government was divided among the executive,
judiciary and legislature. The respective spheres of the state and federal
governments limited each other.

If your objective is limited government and individual
liberty, this is a pretty good framework. But if your goal is to use the state
to remake the world, it can be awfully frustrating. As early as 1908, Woodrow
Wilson called for a “Darwinian Constitution,” one that would not serve as
permanent legal framework for governing but that would “live” and “grow” and
“change” to accommodate the desires of the Progressives.

Put simply, the project of the American legal left became
two fold. One was to remove barriers to the authority of the state,
particularly the federal government. The other was to intervene where the
political branches had “failed” to “address” social problems in an acceptable
way. Thus, over the years, we have seen the authority of Washington and the
courts expand dramatically.

To accomplish these objectives, the legal left adopted a
number of interpretive methods and theories that would maximize the authority
of judges. For example, to simply apply the law as it is written – something
that lawyers today call “textualism” – was derided as simplistic. Better to
somehow discern a “spirit” that goes beyond the law’s mere words. Nor was it
necessary to interpret any ambiguity in the law to mean what the people who
enacted it thought it meant – what lawyers today call “origninalism.” If the
idea is to change the Constitution’s limits on state and federal authority or
to act where the legislature and executive has not, judges cannot be
constrained by the “dead hand of the past.”

Broad constitutional principles like equal protection and
due process became malleable and protean enough to justify substantial judicial
interventions in the political and governing process. Litigation became an
important tool for making policy.

Conservatives have criticized these developments as lacking
legitimacy. Judges, they have argued, should not be given the discretion to depart
from the plain or original meaning of constitutional or statutory text. While
courts have a duty to ensure that the government abides by constitutional
limitations – and even to strike down laws where necessary, the law’s text and
original meaning should limit them. To do anything else would turn judges into
legislators and subvert our constitutional separation of powers.

This is admittedly an oversimplified “op-ed” version of the
matter and an extended discussion would involve considerably more detail and
nuance. But it helps to understand why left progressives and Democrats, on the
one hand, and conservatives and Republicans on the other, seem to differ so
sharply on judicial elections. They have come, over the years, to have very
different views of the law and the judicial function.

We see this in the current race between Justice Rebecca
Bradley and Judge Joanne Kloppenburg. Bradley says that she is a jurist in the
mode of Antonin Scalia and will “apply the law as it is and not as I wish it to
be.” Given an opportunity to explain, she will elaborate on the themes that
I’ve briefly outlines.

Kloppenburg, on the other hand, compares herself to Justices
Ruth Bader Ginsburg and Sonia Sotomayor, jurists who have tended to have a more
expansive view of the authority of courts to clear the way for or, if
necessary, even implement the left progressive agenda.Kloppenburg, herself, has said that she
believes it is the role of judges to interpret the Constitution to create “a
more equal society.” Whatever that means and whether it is desirable or not,
such an objective is quite ambitious and is going to require an activist
judiciary. It goes beyond simply applying the law and necessarily means more
power for judges and the state and less for legislators and private citizens.
It means rule by lawyers.

Kloppenburg reinforces that message by mentioning Scott
Walker whenever she can. It is a dog whistle to the political left that says,
“I’m one of you.”

When seen in this way, the hotly contested nature of our
judicial elections is not an aberration or a disgrace. They are, with all their
imperfections, about something that matters.

Tuesday, March 29, 2016

In yesterday’s Journal Sentinel, Marquette Law Professor Ed
Fallone suggests that the Senate would be somehow abdicating its constitutional
responsibility should it fail to consider President Obama’s nomination of
Merrick Garland to the United States Supreme Court. He’s wrong.

Professor Fallone begins by stating the obvious – and, in
this context – irrelevant. The President has the sole authority to nominate a
justice. No one disputes that. No one argues that the Senate has any role in
the “pre-nomination” process or that it can place conditions or restrictions on
who the President may nominate. The Senate has not done that. An announcement by Senate leadership that it
will only consent to certain kinds of candidates or even that it will consent
to nocandidate places no limitation on
the President’s ability to nominate who he wishes just as an announcement that
a particular budget will be dead on arrival does not limit the President’s
ability to propose it. If the Senate has – or is contemplating – doing
something inconsistent with its constitutional duty, it must be something that
will be done – or not done – after Judge Garland’s nomination.

But there is no duty to vote upon – or even to consider – a
judicial nominee.The President’s
authority to appoint someone to the federal bench is contingent on the Senate’s
advice and consent – something that it is constitutionally free to withhold for
any reason it deems appropriate. In fact, the very authority cited by Professor
Fallone makes that clear.

In an attempt to accuse conservatives of hypocrisy, he cites
to a 2005 article by a conservative law professor John McGinnis posted on the
website of the Heritage Foundation, a group that Professor Fallone accuses of
seeking to “obstruct” Judge Garland’s nomination. (Full disclosure:I am a member of Heritage’s Legal Strategy
Network.)

Professor McGinnis did indeed say that the Senate may not
restrict the President’s selection of a nominee.

But he said something else as well:

The Senate has independent authority in that it may
constitutionally refuse to confirm a nominee for any reason. While ideology and
jurisprudential "point of view" were not among the kinds of concerns
listed by the Framers as justifying the requirement of advice and consent,
nothing in the text of the clause appears to limit the kind of considerations
the Senate can take up. It is thus reasonable to infer that the Framers located
the process of advice and consent in the Senate as a check to prevent the
President from appointing people who have unsound principles as well as
blemished characters. As the President
has complete discretion in the use of his veto power, the Senate has complete
and final discretion in whether to accept or approve a nomination.

(Emphasis added.)

In other words, while the President can ask the Senate to
consent to the nomination of anyone he chooses, the Senate can say no for
whatever reason it wants, including the desire to have a vacancy filled by the
next President. Nothing in the constitutional text requires any particular
process for withholding consent. There is no mandate to hold hearings or to
have an up or down vote. Indeed, many lawyers have been nominated for the
federal bench only to see their nominations fail for want of a hearing or vote.The same is true for nominees to other
branches who the Senate either opposes personally, or opposes for other, often
unstated reasons.

Professor Fallone makes one other obvious point.
“Hypocrisy,” he writes,” is nothing new in politics.” It sure isn’t. In a 2005
speech to the left-leaning think tank Center for American Progress, former Senate
Majority Leader Robert Byrd(D- W. Va.)
said that “[t]he Senate can refuse to confirm a nominee simply by saying
nothing and doing nothing.” (The Center for American Progress today finds
itself outraged by such an idea.) In lengthy remarks during the final year of
George H.W. Bush’s nomination, now Vice President Joe Biden said that the
Senate was well within its rights to refuse to consider a nominee that was not
to its liking “once the political season is underway.”

Indeed, the Alliance for Justice, a left-wing lawyers group
sponsoring the statement signed by Professor Fallone urging consideration of
Garland, is famous for “obstructing” the nominees of Republican Presidents,
including by filibuster.

What we have here is not a failure to abide by commonly held
or binding legal principles. It is a failure to agree. Sometimes this results
in a stand-off that only the next election can break.

Tuesday, March 15, 2016

In this morning's Journal Sentinel, Joanne Kloppenburg attempted to explain why she sat on a case arising from the John Doe investigation. One of the Doe's targets - Wisconsin Club for Growth - had spent large amounts of money criticizing her during her campaign for the Supreme Court in 2011.Given her views on the matter of campaign support and recusal, it is astonishing that she did not step aside. She has been quite critical of Supreme Court rules that allow - but do not require - judges to sit on cases involving parties who have contributed to or spent in support of his or her campaign. She even has gone so far to suggest that those justices who were supported by Club for Growth and, like her, stayed on the case contributed to an appearance of impropriety because "people around the state are saying that the decision and several others look to them like they were foregone conclusions and they believe there was a conflict of interest."Well, let's see. If Justice David Prosser should not sit on a case in which the Club spent money that sharply criticized Kloppenburg and benefited his campaign, why can Joanne Kloppenburg - the person who was criticized - sit on the same case? After all, politics is a zero sum game. What the Club did to benefit Prosser harmed Kloppenburg.This is Joanne Kloppenburg's excuse: "When you someone running ads for you there is a perception of quid pro quo that doesn't exist when someone is running ads against you." (By "quid pro quo," she means the possibility that support was traded for some subsequent action.)That won't fly. Even if you think the opposition of one group can be disentangled from the support of opposing groups, it is inconsistent with our common sense understanding of the sources of judicial bias - a concept that goes well beyond the risk of a "quid pro quo." It suggests that Judge Kloppenburg has not read or does not understand the United States Supreme Court's jurisprudence on this question. Judge Kloppenburg's focus on "quid pro quo" confuses the Supreme Court's campaign finance jurisprudence with its treatment of recusal. And it gets the former wrong. The Supreme Court has said that 1) only the potential for a quid pro quo arrangement justifies the restriction of campaign spending but 2) independent spending does not create the potential for a quid pro quo. Because the Club's spending in the Supreme Court race was independent (allegations in the Doe involved state legislative races), it could not have given rise to the risk of an actual or apparent quid pro quo.But more importantly, in the recusal area, the Court's concern is not limited to the potential for a "quid pro quo." Rather, the constitutional inquiry is directed to any circumstance in which a judge's ability to be impartial might be questioned. Substantial and impactful campaign support can create a "debt of gratitude" that creates an unconstitutionally high appearance or risk of bias. But that's not the only source of bias. The Court made clear that the due process clause requires“a realistic appraisal of psychological tendencies and human weakness,” to determine whether there is “such a risk of actual bias or prejudgment" that recusal is required.

There is no reason to believe that the resentment or desire for vengeance that might be the result of spending againsta judge is any less concerning than the "debt of gratitude" that might be the result of spending for that judge. You can be just as biased against those who have opposed you as you can be biased in favor of those who have supported you. In fact, I'd say that the former is more likely than the latter.Don't believe me? Let's actually engage in a "realistic appraisal of psychological tendencies and human weaknesses." Ask yourself if you would like to appear before a judge that you had just publicly denounced as unfit to serve on the bench? No "quid pro quo" to be sure, but I'm betting that you might feel a tad uncomfortable.*This is why lawyers will rarely ever publicly criticize judges. It is why they rarely ask judges to recuse themselves. In the sage words of The Wire's Omar Little, "if you come at the king you best not miss."I have always argued that Judge Kloppenburg was within her rights to sit on the case. I have explained why elsewhere. I think that Supreme Court justices, in particular, should be very reluctant to recuse themselves because of independent ideological support. But Judge Kloppenburg and her supporters don't agree with me. Given her more expansive view of the duty to recuse and her desire to kick dirt at Justice Prosser for not recusing in the very same case that she sat on, I don't see how she concluded that she should not recuse. The distinction between "supporting" and "opposing" is a chimera.* By way of disclosure, I support Justice Bradley. I recommended her to the Governor and have contributed to her campaign. This view is not one I formed in the light of this campaign. I developed it in a law review article published in 2010.The views expressed here are my own and are not those of the Wisconsin Institute for Law & Liberty which neither supports nor opposes candidates for public office.

Sunday, March 13, 2016

I happened upon a left-leaning website the other day (sure, I read them) and read that “right wing voters love Donald Trump.”

Actually, we don’t.

Last weekend, I spoke at a panel at CPAC, a large national conservative gathering in Washington DC. Oh, I thought I was going to be brave. I resolved to let the chips fall where they may and boldly denounce Trump if given the chance. And I did. The subject was free speech and I said that Trump’s proposal to “open up” the libel laws so powerful politicians like him could sue their critics was antithetical to everything we believe in.

Huge applause. Turns out I wasn’t being so brave after all.

The only thing that really surprised me was the near uniformity and intensity of the anti-Trump sentiment. It is a running joke among movement conservatives and libertarians that, like Pauline Kael who knew no one who voted for Richard Nixon in 1972, we don’t know anybody who is supporting this guy. In fact, it seems that everyone we know not only does not support Trump, they can’t stand him.

That’s extraordinary.

But it makes perfect sense. In my view, the principle difference between the left and right in the United States has been over the extent to which the state ought to manage the life of its citizens. When should it take money from one group of citizens and give it to another? How closely should it manage economic activity? What steps should it take to control discourse and attitudes? It has been about the relative values we attribute to, on the one hand, freedom and equality before the law and, on the other, more political decision-making and greater equality of result.

Of course, these differences are between points on a spectrum rather than polar opposites. In general, people like me are more skeptical of the need for state interventions and very pessimistic about the government’s ability to successfully accomplish them. I appreciate that some positions taken by social conservatives complicate the matter, but not as much as it might seem and less so today than in the past. But that’s a topic for another time.

Donald Trump, of course, isn’t skeptical of government interventions or of collective control determined by politics at all– at least not if Trump is in charge. He almost never talks about freedom or limited government. He flirts with single payer health care and loves eminent domain for private purposes. He wants to intervene in global markets with tariffs and trade wars. He wants to regulate speech. He has a capacious view of both executive and federal power. He is the quintessential crony capitalist.

This is why we think he’s closer to the Democrats than he is to us. That’s not surprising either. He’s been one most of his life.

This is not to say that Trump is a man of the left. He transcends the dominant political divide in the United States, although not in a good way. What Trump represents is something that has not been strong in American politics, but has become increasingly present in Europe. He wants to change the Republican Party to something that is more nationalist and nativist; more collectivist and authoritarian. To use a British example, he wants it to be less like the Conservative Party of Margaret Thatcher and more like today’s British National Party.

One might call this “right-wing” – in Europe they do – but it would be a fundamental reorientation of the American political spectrum. A Trump Republican party might be attractive to many Democrats but it would be repulsive to many current Republicans. I thought of this on Friday night while watching the disruption around a Trump rally in Chicago. It seemed like something we haven't seen since the rending of the Democratic Party in 1968. The way in which both sides seemed fully enveloped in politics as salvation seemed foreign. We don't do angry mobs in America - at least not lately.

As much as I dislike him, Trump is not comparable to Hitler. Sanders is not like Lenin, Castro, Mao or any of the other monsters of the left. But the angry and public confrontations between large groups of partisans reminded me of German politics in the run-up to Hitler’s rise to the Chancellorship. That was a time in which the center did not hold and politics was fought in the streets as well as with the ballot box.

Of course, we don’t have running battles between the Sturmabteilung and Rote Front – at least not yet. But Friday night seemed like something we haven’t seen for a long time. We’ve got reports that a Trump operative attacked a reporter. We have a candidate who calls on supporters to “beat the crap” out of people who might be “getting ready” to throw a tomato. We have organized efforts to shut down opposing political rallies. We have fights between protesters and Trump supporters.

On Friday night, it seemed to me that both groups – the authoritarian “right” (if that’s the term we want to use for Trump) and the authoritarian left – are equally unattractive. After the Trump rally was cancelled, the collection of BlackLivesMatter and Sandernistas chanted that “this is what democracy looks like.”

No, actually it isn’t. What I saw last night looked like something else altogether. Let’s hope we don’t see much more of it.

Tuesday, February 16, 2016

A current legislative proposal, introduced by Speaker Robin Vos, to change the funding mechanism for the statewide school voucher program have been widely mischaracterized. For example, a recent article in the Journal Sentinel suggests the "districts with voucher students face a funding cut" and that proposed funding mechanism for the statewide (not Milwaukee) voucher program could "cost" districts with voucher students (other than Milwaukee) $ 22 million dollars next year. An article yesterday said that, under existing law, districts are allowed to simply "recoup" the funds they lose due to participation of students in the choice program.It's true that current law permits districts to recoup reductions in state aid to pay for vouchers for children a district no longer educates, but it isn't the whole story. And, under the Vos amendment, districts would still be able to recoup aid reduction..Let's start with existing law. Although the districts may recoup the reduction in state aid attributable to a student departing for a private school, whether that reduction amounts to a "loss" depends on the circumstances. But many districts are doing much more than "recouping" what they have lost in state aid.Last June, my organization released a report concerning the contemplated statewide expansion of school choice. We pointed out that changes in the way that vouchers were funded statewide could create a "school choice bonus" for districts with students departing for private schools. This, we explained, was because districts could continue to count departing students for purposes of their revenue limit and state aid. State aid, in turn, would only be reduced by the amount of the voucher. Because this will invariably be less than the revenue limit, districts could receive a combination of state aid and local property tax revenue greater for each departing student than the amount by which their state aid would be reduced. Thus, while districts receive less total revenue, their revenue per student would - in almost all - if not all - instances, increase.Apparently some legislators believed that the funding formula as passed would permit districts to tax only to the extent of their lost revenue per departing student or that, in any event, districts would not levy up to the revenue limit for students that they no longer educated. But that's not what has happened.
According to the non-partisan Legislative Fiscal Bureau, most
school districts, which have children in the voucher program, have helped
themselves to the school choice "bonus" that we predicted and then
had the temerity to "blame" the voucher program for the excess taxes
that they chose to impose. The MacIver Institute highlights
this issue.The question is this: Should school districts be able to continue to receive state aid and levy taxes for students that they no longer must educate even if the sum of state aid and taxes exceeds the amount of revenue they lose for each departing student? Districts are not simply "recouping" lost funds. Those who choose to tax to the extent of their revenue limit are making up for what they have lost and then some.At very low levels of participation, it is possible that the savings attributable to departing students will be less than the voucher amount (and lost revenue) for those students. The impact won't be large but it may make sense - both for the school districts and taxpayer equity (it is not clear why there should not be a local component of voucher funding) to allow districts to recover some or all of the portion of their lost revenue. Of course, at higher levels of participation, a well managed district ought to be able to offset revenue losses because marginal costs should become closer to average costs and the aid reduction will always be substantially less than the average cost per student.In any event, the amendment to the law proposed by Speaker Vos would only change the timing of this school choice "bonus." Rather than allow school districts to count all choice students (kids that a district no longer educates) for purposes of state aid and taxing authority immediately, it "phases" in the counting of these students as would be the case if these were new students (and phases them "out" after they no longer attend a private school within the district). In other words, the Vos amendment only changes the timing of the school choice "bonus."The public narrative has been that current law simply drains the public schools and the amendment would make it worse. It's not that simple.Cross posted at Purple Wisconsin.

Sunday, February 14, 2016

This weekend, America lost a great man. Justice Antonin Scalia was, more than anything else, committed to law as a discipline; as a way of resolving questions that is distinct from - and more limited than - politics, economics and moral philosophy. Judges, in his view, are not charged with the capacious inquiry into what is "right," but a more limited duty to decide what is and is not legal.

To that end, he championed interpretive methods - ways of deciding cases - that limited judicial power and discretion. He was a champion of "textualism," arguing that constitutional and statutory language should be read to mean what it says. (It would surprise the general public to know that this common sense approach is quite controversial among certain elements of the legal community.) Justice Scalia was committed to the notion that, if the language of a law is not clear, judges should not simply give it their preferred meaning, but should attempt to discern its "original meaning," i.e., determine what it meant to those who adopted it and gave it the force of law.

As an advocate of plain meaning and originalism - two ideas that were met with derision among legal sophisticates when I attended law school - Justice Scalia moved the law. While I did always agree with him - I thought his view of executive and administrative power was too generous and his views on what cases can and cannot brought in federal court too limited - we are closer to a proper understanding of our Constitution than we were thirty years ago.

Because he believed in judicial modesty, Justice Scalia would not have wanted the selection of his successor to be the existential battle that it is likely to become. He did not believe that courts should have enough power and discretion to make the question of who sits on them as important as it has become.

But it is.

While the Supreme Court is routinely described as "conservative," it has a very disciplined bloc of four members firmly ensconced in the doctrines and understanding of the legal left. Justices Ginsburg, Breyer, Sotomayor and Kagan would dramatically change our constitutional jurisprudence. On a long list of issues - affirmative action, free speech, freedom of religion, federalism - a fifth vote for this group will change current doctrine.

The Senate is not obligated to allow President Obama to change the Court in this way. It's right to "advise and consent" - its duty to exercise independent judgment on judicial nominees - says otherwise. That duty is not limited to passing on a nominee's legal qualifications. It is also free to insist that a nominee have demonstrated a proper understanding of the Constitution. It is obligated to ensure that a nominee have a commitment to federalism, the separation of powers, individual liberty and the written Constitution.

If the Senate is unable to confirm the President's nominee, it will not be "obstructing" the process but playing its constitutional duty in that process. It has absolutely no obligation to agree to the President's choice and, indeed, has a duty to exercise its independent judgment.

It has been eighty years since a vacancy arising in the year of a Presidential election has been filled in that year. In 1956, President Eisenhower made a recess appointment of William Brennan, but Justice Brennan was nominated and confirmed in 1957 - after the President was re-elected. In 1968, Chief Justice Earl Warren announced his retirement and President Lyndon Johnson - like Barack Obama a lame duck - nominated Abe Fortas to replace him. Fortas' nomination was blocked by filibuster. The people elected Richard Nixon and it was Nixon who nominated Warren Burger to fill the vacancy and the next Congress that confirmed him.

The future direction of the Court is in the balance and the nominee is likely to serve for a generation. With the presidential election upon us, the people ought to be heard on who will fill this vacancy.

About Me

I am President and General Counsel of the Wisconsin Institute for Law & Liberty and an adjunct professor of law at Marquette University Law School. The views expressed here are my own and not those of WILL or Marquette. They are offered in my personal capacity.